Leading Article: When justice is beyond the purse

Monday 5 September 1994 23:02 BST

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ACCESS to justice is a fundamental right of citizens in a civilised society. This country's legal aid system was introduced in 1948 to ensure the poor as well as the better off could pay a lawyer to defend them. For several decades it functioned relatively well. But a point has now been reached where only the poor and the rich can afford to go to court. Given the need for prudent public spending policies, some limits on the legal aid budget are inevitable. But these must be measured against the risk of an erosion of public confidence in the system as a whole.

The most severe blow was struck by the Lord Chancellor, Lord Mackay of Clashfern, last year when the earnings limit for eligibility was cut from pounds 145 a week to pounds 70 for the basic advice scheme. The Lord Chancellor's move was 'Treasury driven', the annual cost of legal aid having risen to pounds 1.4bn. Yet it was the consumers who bore the brunt of the cutbacks, rather than the lawyers who supply the services.

It was all the more galling for frustrated litigants when legal aid running into millions of pounds was made available to seemingly wealthy defendants in a series of spectacular fraud cases. Among the beneficiaries were the former Guinness chairman Ernest Saunders, the bankrupt former Polly Peck chairman Asil Nadir, and, most recently, an Iraqi businessman with six houses, Dr Jawad Hashim, who has received pounds 2m of legal aid to defend himself against an embezzlement charge.

The Lord Chancellor is now, we report today, looking with sympathy on the Law Society's recent suggestions that such assets as valuable property holdings should be included in calculations of eligibility for legal aid. Any funds saved on high-profile cases running to millions of pounds should be used to widen eligibility at the lower end of the income spectrum.

At a more radical level, Lord Mackay is seriously considering a cash limit on the overall legal aid budget, hitherto demand-led. That would be a regressive move if it excluded yet more of those on modest incomes. He is, it seems, attracted by a recent proposal from the Social Market Foundation for a new tier of middlemen, called fundholders for justice, who would assess a client's eligibility for legal aid, the strength of the case, and whether it could be resolved by arbitration.

The scheme may have merit and it is encouraging that the Lord Chancellor is starting to recognise the need to do more than dance to the Treasury's tune. He still has a long way to go, however, before anyone will be convinced that he has a grip on this most important part of his domain.